HS2 and the environment - Environmental Audit Committee Contents


6  Consultation and environmental assessment

63. In this Part we examine how well the environmental aspects of the project have been consulted upon, and the robustness of the environmental assessment process that should underpin that exercise.

Consultation and public engagement

64. The Department of Transport told us that the Environmental Statement had been "developed in an open and transparent way involving a level of engagement and consultation that goes beyond what is legally required".[146] HS2 Ltd told us that "the consultation has had teeth",[147] and highlighted two major adjustments to the route as a result of the consultation on the 2013 Draft Environmental Statement.[148]

65. However, HS2 Action Alliance described the decisions taken by HS2 Ltd as "inscrutable" and believed that the Environmental Statement had not explained the process by which alternatives were assessed and choices made.[149] The Woodland Trust complained that HS2 Ltd had not shared its calculation methodology and had not provided sufficient detail on alternative options.[150] CPRE, similarly, told us that HS2 Ltd had failed to disclose information on why potential alternatives had been dismissed.[151] We were told that councils had not been consulted on flooding issues, but the Environmental Agency said that councils would have an opportunity to participate in consultations at a later stage.[152]

66. Local authorities and others noted an absence of mechanisms for appealing against HS2 Ltd's decisions or for ensuring that stakeholders' environmental concerns were taken into consideration. Camden Council, before the Higgins report was published in March 2014, complained that:

    There does not appear to be any clear system or process in place which a local authority, or other parties such as residents and businesses along the route, can utilise to guide environmental considerations, other than the petitioning process which is a costly and cumbersome mechanism which should not be relied upon as a means of ensuring there is no deterioration to the environmental quality as a result of HS2. ... Better processes and systems should have been implemented at an earlier stage of the project at which interested parties could and should have had an input into the original design and methodologies utilised. Such a collaborative approach could have avoided the production of the inadequate proposals we now see.[153]

HS2 Ltd had a different perspective. They told us that:

    The Hybrid Bill process will be one avenue of resolving those disputes as petitioners come forward. [We] would expect a lot of that sort of business to be taken care of through that Parliamentary process. In construction we have provision for a Complaints Commissioner and, ultimately, if there is no resolution even with the Complaints Commissioner, it would go back to the Secretary of State. ... [There are] other mechanisms. If you have a consent regime, if we have water quality consents, water discharges and ... noise consents, if we are in breach of those consents, then the law comes into effect.[154]

67. Several of our witnesses told us that the Environmental Statement had not assessed or facilitated consultation on the cumulative impacts of HS2. The HS2 Ecology Technical Group pointed to "no cross referencing of impacts" in the Environmental Statement with "other sections, such as Agriculture, Forestry and Soils, Land Quality, Water Resources or Waste and Material Resources".[155] The National Trust made a similar point.[156] Camden Borough Council told us, before the Higgins report was published, that:

    The layout of the Environmental Statement is such that an individual resident is not able to determine the in-combination impacts of the project at their property. For example, the noise, air quality and transport impacts have been reported separately and there is no spatial presentation of the information or basic description of the environmental in-combination impacts at any given location. The effect of this is that neither we as a local authority, or other interested parties, are in a position to understand the scale of impact on the environment, nor assess whether the mitigation proposals are adequate at any given location.[157]

Sustainable development

68. Throughout this Parliament we have examined issues against the requirements of sustainable development and how well sustainability—balancing economic, social and environmental considerations together—is being taken forward in the UK and internationally. In the case of HS2, this approach does not seem to have been to the fore. CPRE identified a "lack of integration between HS2 and wider policy; the National Planning Policy Framework talks about seeking environmental goals simultaneously and jointly with economic and social ones".[158]

69. The Environmental Memorandum (part of the Environmental Statement set of documents) effectively puts a limit on environmental measures by requiring them to be 'practicable' and 'reasonable':

    … the nominated undertaker … with the support of the statutory environmental bodies, agree to the following environmental aims for the design and construction stage of Phase One of HS2:

    to design and construct Phase One of HS2 such that significant environmental effects are eliminated, controlled or reduced where reasonably practicable; …

    to address sustainability principles in on-going design development, taking opportunities for environmental enhancement and compensation where practicable and reasonable;

    and in doing so, recognise that the nominated undertaker will take a responsible approach to balancing the achievement of environmental principles with the overall objectives of Phase One of HS2.[159]

Stop HS2 highlighted that the Environmental Minimum Requirements (also part of the Environmental Statement document set) would impose requirements on the HS2 operator to reduce adverse environmental effects provided that these did not add unreasonable cost or delay to construction or operation. They described this as "hardly reassuring, especially given that ... there is currently a political imperative to control and reduce costs of building HS2, and the obvious areas which give the only real leeway for cost-cutting are compensation and mitigation".[160] HS2 Ltd noted that it would be up to Parliament to determine, through the Hybrid Bill Select Committee's consideration of petitions, what was 'reasonable and practicable' for particular mitigation and compensation measures.[161]

70. Robert Goodwill MP told us that "by planning this project sensibly we have sought to reduce adverse environment effects as far as possible",[162] but he appeared in his evidence to see the environmental, social and economic aspects of the project as distinct, rather than matters to be considered and optimised together:

    I do not think we need to make any excuses for building a high speed line and building it as straight as possible, and then ensuring that we minimise the environmental impact. … It is important that you separate the biodiversity environmental type of issues from the issues of people who live near the line and do not want to look at it. They are two separate things.[163]

That disconnected approach is reflected in how the issue of HS2 trains potentially operating at slower speeds has been addressed by HS2 Ltd in terms of economic rather than environmental or emissions considerations (paragraph 14). And as we have also discussed, the design of biodiversity offsetting measures has overlooked well-being considerations (paragraph 44).

Environmental assessment

71. In this report we have identified a number of areas where concerns have been raised about the way that the HS2 project has identified and dealt with potential environmental impacts. In a major project, such concerns are meant to be addressed through a framework of environmental assessments, as required under EU directives.

72. There are two main processes: a Strategic Environmental Assessment (SEA)[164] and an Environmental Impact Assessment (EIA).[165] An SEA directive applies to certain 'public plans and programmes', including some transport projects, and requires that the Government accounts for the way in which the environmental aspects of the proposal are considered when it is adopted. It can potentially influence the choice of 'strategic alternatives'. An EIA, on the other hand, typically coming after an SEA, should identify the environmental impact of a particular project, but would not be used to make strategic choices or choose between strategic alternatives.[166]

73. An SEA requires the monitoring of significant environmental effects and implementation plans in order to identify unforeseen issues and implement appropriate remedies.[167] The EIA Directive does not require such monitoring,[168] although this can be imposed through planning or licensing conditions introduced through the planning consent process. Both SEA and EIA directives require there to be public consultations, and for the results to be taken into account in the development of the proposals.

74. Because HS2 is a major project that potentially affects individuals and businesses along its route, the Government has chosen to implement it through a hybrid bill, leaving Parliament as the 'relevant authority' to give planning permission through the passage of the Bill. Clause 19 of the HS2 Hybrid Bill provides that "Planning permission is deemed to be granted under Part 3 of the Town and Country Planning Act 1990 for the carrying out of development authorised by this Act."[169]

75. The EIA Directive exempts such Parliamentary decision-making processes from the Directive's requirements on the assumption that the legislative process already fulfils the public consultation requirements specified by the Aarhus Convention on public participation in decision-making in environmental matters[170] through the involvement of elected representatives.[171] The House's private business Standing Order 27A requires a hybrid bill to meet the requirements of the EIA Directive. The Standing Order requires that for private bills an Environmental Statement is produced and deposited when as the bill is introduced.[172] They also effectively require that Environmental Statements have to comply with the obligation in the EIA Directive for the public to be consulted on a Statement, and the House agreed a revised Standing Order (SO 224A)[173] in June 2013 to make that requirement explicit.

76. The HS2 Environmental Statement set out "a description of the scheme and how it was developed; the alternatives that were considered; assessment of the likely adverse and beneficial environmental effects of the scheme; and proposed mitigation measures to manage or reduce likely significant adverse effects".[174] Accordingly, HS2 Ltd told us, it reflected "the information that would have to be brought forward through an EIA process".[175] This followed an Appraisal of Sustainability in 2011, which HS2 Ltd told us "looked at a large number of route options" and "took cognisance of the SEA Directive and the sort of things that you would see through SEA".[176] The purpose of the Environmental Statement is to:

... provide Members of Parliament with information on all the significant environmental effects likely to result from HS2 Phase One so that they can be taken into account before Parliament decides whether or not to grant the powers to build the railway.[177]

The Draft Environmental Statement, consulted on between May-July 2013, noted that:

    Consultation on the Draft Environmental Statement is not a statutory requirement, but HS2 Ltd recognises the importance of ensuring widespread engagement on the scheme and wishes to offer everybody with an interest the opportunity to:
  • Understand what the likely significant environmental effects would be and what mitigation is proposed; and
  • Comment on the assessment undertaken to date and the conclusions reached so far.

    This consultation may identify issues that result in changes being made to the design of the scheme or the proposals to mitigate significant adverse effects. These changes will be included in the Environmental Statement to be submitted to Parliament.[178]

Subsequently, on the Draft Environmental Statement, the Department of Transport concluded in November 2013 that:

    For engineering, environmental or cost reasons it has not been possible to take on board all comments raised. However, the consultation process provided a robust analysis of the content of the draft Environmental Statement and draft [Code of Construction Practice] and helped to confirm findings and identify areas which required further justification or information. Responses received have influenced the drafting of the Environmental Statement and led in part to changes to the Environmental Statement and to the design of the Proposed Scheme. The Environmental Statement now reflects the results of the analysis of consultation responses. Where a change would be of proven benefit to local communities, the environment and/or the Proposed Scheme these have, where reasonably practicable, been incorporated.[179]

Peter Miller of HS2 Ltd described those adjustment for us (paragraph 64).

77. The November 2013 final HS2 Environmental Statement, also published for consultation, stated that "HS2 Ltd's aim has been to avoid adverse environmental effects, where reasonably practicable", and to mitigate or compensate for adverse effects where they cannot be avoided.[180] The Department of Transport told us that "[we] firmly believe that we have produced a best practice Environmental Statement based on national and international best practice that fully complies with all relevant national and EU law".[181] The Environmental Statement, it went on, was "developed in an open and transparent way involving a level of engagement and consultation that goes beyond what is legally required".[182] It said that "the planning permission provided by the Bill is not valid if the environmental effects of the railway exceed those set out in the Environmental Statement."[183]

78. There have been legal challenges to the process, however, arguing that as a scheme of strategic national importance its environmental impact assessment should have been guided by the SEA directive. The Supreme Court ruled that a January 2012 Appraisal of Sustainability, consulted on alongside a High Speed Strategy in February 2011, would not have complied with the SEA Directive because it did not consider 'reasonable alternatives' and because it covered only Phase 1 of HS2 rather than the two phases covered by the Strategy. However, the Court rejected the legal challenges on the grounds that an SEA was not required. The Government's July 2013 summary of the Court judgments noted that "the Government has explained clearly at each stage of the project why there is no alternative to HS2 which meets strategic objectives and offers the same scale of benefits."[184]

79. The Court noted that the subsequent Decisions and Next Steps report in January 2012 was not a plan required by 'legislative, regulatory or administrative provision' under the SEA Directive, and which in any case could not set the framework for Parliament (as the competent authority for the Hybrid Bill) because Parliament was sovereign and not able to be influenced by the Decisions and Next Steps report. The Court concluded that:

    The [Decisions and Next Steps report] would have no legal influence on Parliament, which was not obliged to comply with it or even to have regard to it in reaching its decision. Nor was it appropriate or possible for the court to assess the degree of influence the [Decisions and Next Steps report] was likely to have as a matter of fact on Parliament's decision-making process.

    Parliament is constitutionally sovereign and free to accept or reject statements of Government policy as it sees fit, and the court should not seek to second guess what Parliament will do.[185]

80. The Court saw the Decisions and Next Steps report as "a very elaborate description of the HS2 project, including the thinking behind it and the Government's reasons for rejecting alternatives",[186] but concluded that it did not constrain the decision-making process of the responsible authority—that is Parliament:

    The very concept of a framework, rules, criteria or policy, which guide the outcome of an application for development consent, as a plan which requires SEA even before development project EIA, presupposes that the plan will have an effect on the approach which has to be considered at the development consent stage, and that that effect will be more than merely persuasive by its quality and detail, but guiding and telling because of its stated role in the hierarchy of relevant considerations. That simply is not the case here.

    Until Parliament has reached its decision, the merits of all aspects of the HS2 project, on economic, environmental and other grounds, remain open to debate.[187]

There had been similar issues on the Crossrail project; the most recent hybrid bill before HS2. The Crossrail Hybrid Bill Select Committee noted in October 2007 that:

    … two issues have arisen before us in the context of environmental assessment concerning either: the alleged inadequacy generally of the environmental assessment process for the Bill and the Environmental Statements produced for Crossrail, and the failure to consider alternatives. … We have been frequently assured by Counsel to the Promoter that what has been produced in the Environmental Statement meets the legal requirements of providing an outline of the main alternatives studied by the developer and an indication of the main reasons for this choice, taking into account the environmental effects. We understand that there was no requirement to set out full information on alternatives. …

    The Promoter also told us that the environmental assessment process adopted for the Bill complies with the Environmental Assessments Directive and we see no reason to dispute their conclusions.[188]

HYBRID BILL SELECT COMMITTEE

81. As noted above, in its ruling the Supreme Court saw all aspect of HS2 open to debate until Parliament has reached its decision (paragraph 80). There is, it seems to us, a clear expectation that Parliament will ensure that the HS2 Hybrid Bill process delivers the requirements of the EIA Directive. It is clear that the Environmental Statement and EIA process is far from complete. There are still gaps to be filled, including an environmental survey of the 40% of the route still not covered (paragraph 20) and of the ancient woodlands affected (paragraph 20), as well as details of how environmental impacts will be mitigated, compensated or offset (paragraph 23) and a full assessment of the cumulative impacts of different environmental and community factors (paragraph 67), including those likely to occur with Phase 2,

82. Standing Order 27A allows those affected by a proposal to petition against specific elements of a hybrid bill, and SO 224A effectively requires 'supplementary environmental information' also to be consulted on.[189] The Minister foresaw a challenge in that process in distinguishing between "vexatious [petitions] trying to gum up the process" and those "that would have very real environmental benefits".[190]

83. Such petitioning reflects the normal planning system, where those affected by a planning application can object to the planning authority. In a normal planning process, that 'competent authority' is also able to request further environmental information until it is satisfied that it has the necessary material to be able to make a decision. In the case of HS2, Parliament, as the competent authority, had no role in the earlier Appraisal of Sustainability and Decisions and Next Steps processes that preceded the Hybrid Bill, and therefore had no formal engagement in the process that led up to the choice of preferred route.

84. In the absence of a formal SEA process for HS2, it is incumbent on the House to keep the scope of the continuing environmental assessment process sufficiently broad, within the 'principles' of the Hybrid Bill, to allow full consideration of the environmental impacts of options still available within a project described in the Hybrid Bill as "a high speed railway between London and the West Midlands". The House will have to ensure that HS2 Ltd does not rely on its 'practicable and reasonable' caveat (paragraph 69) to readily dismiss essential environmental protections.

85. The House's instructions in July 2005 to the Hybrid Select Committee on Crossrail specified the 'principles' of the Bill in terms of only the terminals and particular intermediate stations identified in that Bill, and not other stations or the Crossrail routes.[191] Those instructions also tasked the Crossrail Select Committee to:

    without comment, report to the House for its consideration any issue relating to the environmental impact of the railway transport system for which the Bill provides that is raised in a Petition against the Bill, but which the Select Committee is prevented from considering by the practice of the House …[emphasis added][192]

86. It is important that if HS2 proceeds, the House is able to demonstrate that it has at least fully followed the purposes and processes, to address environmental risks and to prevent or mitigate them, that would be expected of any other development of this scale. The Government should therefore couch its intended instructions to the Hybrid Bill Select Committee accordingly. It is vital that, when the HS2 Hybrid Bill is given its Second Reading and referred to the Select Committee to consider petitions, the House's instructions to it:

(i) do not overly constrain the 'principles' of the Bill approved at Second Reading. The motion should list only the key fixed features of the project such as terminals in Birmingham and London. This would allow the Select Committee to request information on measures that could avoid, reduce or remedy environmental damage (an EIA process) of potential modifications to the route and its infrastructure and consequential environmental protections that might result, for example, from the trains being required to operate at marginally slower speeds that currently planned (paragraph 14).

(ii) require it to consider and report on the environmental impacts of the project. Unless the Government or others in the House do so, Members of our Committee intend to table a motion requiring the select committee "to comment and report to the House for its consideration any issue relating to the environmental impact of the railway transport system for which the Bill provides that is raised in a Petition against the Bill, including whether any reasonable or practicable environmental protections and mitigations are not adopted". As modifications are subsequently introduced, as a result for example of the Higgins report or further environmental surveying (paragraph 20), additional instructions to the Select Committee to deal with these should be couched in similar terms.


146   Department for Transport (HS2 028), para 2.1 Back

147   Q 127 Back

148   Q109 Back

149   HS2 Action Alliance, (HS2 045), para 2.7  Back

150   Q42 [Mr Barnes] Back

151   Q43 [Mr Smyth] Back

152   Buckinghamshire County Council (HS2 024), para 6.1.2; Q92 Back

153   The London Borough of Camden (HS2 035), para 4.1 Back

154   Q129 Back

155   HS2 Ecology Technical Group (HS2 027), para 10.3. Back

156   National Trust memo( HS2 029), paras 2.1, 3.1-3.4 Back

157   The London Borough of Camden (HS2 035), para 3.5.2. Back

158   Q29 [Mr Smyth] Back

159   Department for Transport (HS2 028), para 3.10 Back

160   Stop HS2 (HS2 31), Executive Summary Back

161   Q168 Back

162   Q99 Back

163   Q121 Back

164   European Council and Parliament Directive 2001/42/EC  Back

165   Council directive 85/337/EEC, now consolidated as European Council and Parliament EU Directive 2011/92/EU. Back

166   Current proposed amendments to the EIA Directive, Article 5 (2) (COM (2012) 628 final), include the requirement to assess reasonable alternatives, similar to the requirement in the SEA Directive. Back

167   European Council and Parliament Directive 2001/42/EC, Article 10 Back

168   Current proposed amendments to the EIA Directive (Annex IV) include the requirement for monitoring. COM (2012) 628. Back

169   High Speed Rail (London - West Midlands) Bill, Clause 19(1) [Bill 132-I (2013-14)] Back

170   Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 1998  Back

171   European Council and Parliament EU Directive 2011/92/EU, Article 1(4)  Back

172   Standing Order 27A, House of Commons, Standing Orders of the House of Commons-Private Business, July 2005, HC 441 (2005-06)  Back

173   House of Commons Votes and Proceedings, 26 June 2013, Item 9 Back

174   Department for Transport/HS2 Ltd, Draft Environmental Statement: Non-Technical Summary (May 2013), Foreword Back

175   Q106 Back

176   Q102 (see also Qq111, 126) Back

177   Department for Transport/HS2 Ltd, Draft Environmental Statement: Non-Technical Summary (May 2013), Foreword Back

178   Department for Transport/HS2 Ltd, Environmental Statement: Non-Technical Summary (May 2013), Foreword  Back

179   Department for Transport/HS2 Ltd, Draft Environmental Statement Consultation Summary (CT-008-000), November 2013, p60 Back

180   Department for Transport/HS2 Ltd, Environmental Statement, Non-technical summary (November 2013), p4. Back

181   Department for Transport (HS2 028), Executive Summary Back

182   ibid, para 2.1 Back

183   Department for Transport (HS2 028), para 3.1 Back

184   Department for Transport, HS2 Judicial Review Appeals - the appeals ruling explained, July 2013; accessed 28 March 2014 Back

185   Supreme Court Judgment, 22 January 2014, paras 31, 56 Back

186   ibid, para 38 Back

187   Supreme Court Judgment, 22 January 2014, paras 96, 49 Back

188   Select Committee on the Crossrail Bill, First Special Report of Session 2006-7, Crossrail Bill, HC 235-I, paras 239, 240 Back

189   Qq113-114 Back

190   Q100 Back

191   Select Committee on the Crossrail Bill, First Special Report of Session 2006-7, Crossrail Bill, HC 235-I, p58 (which reproduced entry from Votes and Proceedings for 19 July 2005, item 19) Back

192   ibid Back


 
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Prepared 7 April 2014